In defense of King Cove deal, federal attorneys argue swap legal under ANILCA

Sen. Lisa Murkowski, R-Alaska, holds up a copy of a newspaper with a note from President Donald Trump stating "We will get it done" during an event in her office on Capitol Hill in Washington on Jan. 22. Murkowski was joined by other Alaskan officials regarding the Interior Department's decision to the construction of a road through a national wildlife refuge in Alaska.The road would connect the communities of King Cove and Cold Bay, which has an all-weather airport needed for emergency medical flights. (Photo/Susan Walsh/AP)

Federal attorneys insist an environmental coalition wildly misconstrues several federal laws in its suit against Interior Secretary Ryan Zinke over a land swap that would facilitate a road out of the Alaska Peninsula community of King Cove.

Filed in U.S. District Court of Alaska Aug. 22 with Judge Timothy M. Burgess, Justice Department attorneys argued that the land exchange announced in January complies with the Alaska National Interest Lands Conservation Act but falls outside the purview of other environmental laws in a 42-page opposition response to the coalition’s July 11 summary judgment motion.

Friends of Alaska Wildlife Refuges, the Alaska Wilderness League, The Wilderness society and six other national conservation groups sued Zinke in late January shortly after the he signed a land exchange with King Cove Corp., an Alaska Native village corporation.

The agreement has the company trading up to 500 acres of its land for an equal-value chunk of a Wilderness-designated section of the Izembek Wildlife Refuge, or enough refuge land to build an 11-mile, single-lane gravel road that would complete the connection to community of Cold Bay and its 10,000-foot, all-weather runway.

Building a road between King Cove and Cold Bay has long been a contentious issue between the state and federal governments. Alaska legislators threw bipartisan support behind it in 2017 via a unanimous resolution; it has also been a priority of multiple governors Alaska’s congressional delegation.

Proponents stress, as Zinke did when announcing the agreement, that the road would greatly improve access to medical care for King Cove’s roughly 800 year-round residents as the isolated town’s small airport is regularly rendered unusable by harsh North Pacific storms and medevacs requiring risky operations by the Coast Guard.

At the same time, the road has garnered opposition from conservation organizations and prior Interior leaders in presidential administrations of both parties, who fear it would not only damage critical waterfowl and wildlife habitat in the Izembek Refuge but also set the dangerous precedent of developing an area previously designated by Congress as Wilderness, the strongest protection given to public lands.

To the court filings, the conservation coalition alleges the land exchange, which has yet to be finalized, violates the 1980 public lands bill commonly known as ANILCA. Signed by President Jimmy Carter, ANILCA established or expanded many of the national parks, wildlife refuges and other federal conservation areas in the state. Section 1302 of the milestone law grants the Interior Secretary the authority to make such land exchanges but also mandates they must be done to “carry out the purposes of this act.”

The attorneys for Interior acknowledge Congress passed ANILCA to protect natural public lands in the state, but add that it also allows for the “adequate opportunity for satisfaction of the economic and social needs of the State of Alaska and its people,” according to the Interior brief.

“In agreeing to the land exchange, the (Interior) Department is establishing a ‘proper balance’ between the interests of the people of Alaska and the conservation of Alaska’s natural resources, as intended by ANILCA,” the brief states.

It further notes that Zinke signed the agreement so King Cove Corp. could pursue construction of a gravel road primarily for health and safety reasons.

However, the federal attorneys also contend Title XI of ANILCA, which lays out the process for approving a transportation system through federal conservation lands and includes requirements for inter-agency consultation of such a plan, doesn’t apply in this case because the agreement does not guarantee a road will be built.

In June 2017 Interior granted the state Department of Transportation approval to conduct several weeks of surveys over the yet-to-be swapped Izembek lands to identify the least impactful road route through the refuge.

Title XI of ANILCA also mandates an environmental impact statement under the National Environmental Policy Act also be drafted to evaluate a proposed transportation system through federal conservation areas.

They additionally contend that because the agreement does not authorize road construction and “any future road would not be built through a conservation system unit, but through private land, and Title XI would not apply,” the brief states.

Arguments that Zinke violated NEPA by not first having an Interior agency conduct an EIS for the land exchange are also irrelevant, according to the department, because the swap will result in a conveyance to a Native corporation. King Cove Corp. also agreed to relinquish 5,430 acres of lands it had selected for conveyance as part of the agreement.

In late 2013, then-Interior Secretary Sally Jewell rejected land swap deal passed by Congress in 2009 after a U.S. Fish and Wildlife Service environmental impact statement urged against it; the EIS deemed the road would irreparably damage critical waterfowl habitat in the refuge.

King Cove Native organizations and the State of Alaska subsequently sued Jewell over her decision to block the road, but the suit was dismissed in federal District Court and an appeal to the 9th Circuit Court of Appeals was later dropped.

That swap would have traded 206 acres of Izembek land and 1,600 federal acres outside the refuge for about 56,000 acres of state and King Cove Corp. land.

Finally, Interior’s attorneys insist Zinke did not need to consult with U.S. Fish and Wildlife Service officials regarding potential impacts to endangered species and their habitats — specifically Steller’s eider ducks and northern sea otters — before signing the agreement, again because the agreement does not authorize road construction.

They note that in 2013 the Fish and Wildlife Service concluded a land exchange would have “no effect” on Endangered Species Act-listed species or critical habitat and as a result no consultation was required.

“Road construction, if any, can proceed only after King Cove passes numerous significant hurdles like funding, planning, any state approvals and permitting, and any federal approvals and permitting, including any required ESA review and compliance,” the brief states.